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Lobbyists Will Soon be Required to Register in Every Province — Including PEI

November 22, 2018

Prince Edward Island is currently the only Canadian province without provincial lobbyist registration requirements. But that is about to change.

Last month, PEI’s Cabinet decided that the province’s Lobbyists Registration Act (the “Act”) would come into force on April 1, 2019.[1] Each province will then have its own lobbying rules in effect.

If you or your organization communicates with public officials in PEI, the Act may apply. This legal update is intended as general guidance only. Please refer to our updates on lobbying legislation in British Columbia, Alberta, and Ontario — as well as under the federal Lobbying Act — for more information about the requirements in other Canadian jurisdictions.

Here’s what lobbyists in PEI need to know

Many aspects of the Act appear to be drawn from the legislation in other provinces:

What is lobbying?

Lobbying occurs when an individual is paid by their client or employer to communicate with a public office holder in an attempt to influence government decision making. The Act’s definition of “lobbying” specifically includes attempts to influence government decisions indirectly, through “grass-roots communication” – the same is true in Alberta. Communicating with public office holders through “mass media” or members of the public directly may thus be considered lobbying under the Act. Under Ontario’s, Saskatchewan’s, and Canada’s lobbying legislation, “grass-roots communication” is not included in the definition of lobbying, but is considered a registerable activity.

For example, an attempt to influence public policy by appealing to the public to put pressure on a public office holder will constitute lobbying. Time spent preparing and executing this kind of grass-roots advocacy campaign will count towards the Act’s 50-hour registration threshold, discussed below. That said, advocacy will not be considered “grass-roots communication” if its audience does not extend beyond an entity’s own members, officers, employees, partners, or shareholders.

When to register

An entity must register when its employees will collectively devote at least 50 hours in a three-month period to lobbying PEI public office holders. This is a higher registration threshold than applies in other Canadian jurisdictions. In Ontario, for example, the registration threshold is 50 hours per year. The same will soon apply in Alberta. British Columbia, meanwhile, has a threshold of 100 hours per year.

Under the Act, who must register is determined by the type of entity whose employee or employees is or are lobbying. For in-house lobbyists employed by organizations such as unions, industry associations, and not-for-profits, it will be the most senior paid officer of the organization, typically the president, CEO, or Executive Director, who will be required to register. For in-house lobbyists employed by persons or partnerships, including corporations, it will be the individual employee who will be required to register.

Registration with the province’s Lobbyist Registrar will be required within two months of a lobbying activity. Registrations are valid for six months and must be renewed within 30 days of the six-month anniversary of the registration. The registration must detail the subject matter of the lobbying, the communication techniques used or expected to be used, and the government departments, MLAs, or political staff to be targeted.

Who is a “public office holder”?

You should assume that, if you or one of your employees, officers, or directors is communicating with someone who receives a PEI government paycheque, then you or they are interacting with a “public office holder” within the meaning of the Act. If you or they are doing so to try to influence a matter of public policy, then you are lobbying. In particular, under the Act, “public office holders” will include: (i) a member, officer, or employee of the Legislative Assembly and their staff; (ii) officers, directors and employees of Prince Edward Island government departments, agencies, boards and commissions; (iii) a person appointed by the Cabinet or a Minister to any office or body; (iv) an officer or employee of the government; and (v) a member, officer or employee of an education authority. Communications with individuals who do not meet this definition cannot constitute “lobbying” and will not count towards the 50-hour registration threshold.

Certain public office holders — including former Ministers, members or officers of the Legislative Assembly, senior public servants, and others specified by regulation — will be prohibited from lobbying for six months after the date on which they cease to be a public office holder.

Contingency fees will be prohibited

The Act will prevent “consultant lobbyists” — i.e., lobbyists who undertake to lobby on behalf of a paying client — from receiving fees that are contingent in whole or in part on the degree of success of their lobbying. Clients of consultant lobbyists will be prohibited from making any such payments. The prohibition against contingency fees is similar to prohibitions in place in Ontario, Alberta, Quebec, Nova Scotia and the federal legislation.

The Act does, however, offer some wiggle room to consultant lobbyists and their clients who are in existing contingency fee arrangements. As under recent amendments to Alberta’s lobbying legislation, they will have two years after the amendments come into force to become compliant.

What are the consequences of non-compliance?

Anyone who is convicted of an offence under the Act may be liable to pay a fine of up to $25,000. While the offence of making a false or misleading statement in a return or other document submitted to the Registrar requires that the accused have done so knowingly, there is no such knowledge requirement to be convicted of the offence of non-compliance with the Act’s registration requirements. Scrupulous attention is thus advised.

The bottom line

Like similar legislation in every other province, PEI’s Act stands to make a significant difference in how government and private individuals and organizations interact with one another. If you, your employees, or directors engage with the Legislative Assembly or other PEI public officials or provincial entities, be sure you understand how these forthcoming rules will affect the ways in which you do business.

[1]Declaration re Lobbyists Registration Act, EC2018-679 (Oct. 22, 2018); see also Department of Justice and Public Safety, “New registration for Lobbyists” (Nov. 7, 2018). Bill 24 is respect of the Act passed third reading in the Legislative Assembly of PEI and received assent on December 20, 2017.